[Federal Register Volume 64, Number 118 (Monday, June 21, 1999)]
[Notices]
[Pages 33079-33081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15656]


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FEDERAL LABOR RELATIONS AUTHORITY

[FLRA Docket No. WA-CA-30451]


Opportunity To Submit Amicus Curiae Briefs in an Unfair Labor 
Practice Proceeding Pending Before the Federal Labor Relations 
Authority

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of the opportunity to file briefs as amici curiae in a 
proceeding before the Federal Labor Relations Authority in which the 
Authority is determining, in the context of resolving the case before 
it, whether and under what circumstances agencies are obligated to 
engage in union-initiated midterm bargaining.

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SUMMARY: The Federal Labor Relations Authority provides the opportunity 
for interested parties to file briefs as amici curiae on a significant 
issue arising in a case pending before the Authority. The Authority is 
considering the case pursuant to its responsibilities under the Federal 
Service Labor-Management Relations Statute. The issue concerns whether 
and under what circumstances an agency is required, during the term of 
a collective bargaining agreement, to engage in union-initiated midterm 
bargaining.

DATES: Briefs submitted in response to this notice will be considered 
if received by mail or personal delivery in the Authority's Case 
Control Office by 5 p.m. on July 19, 1999. Placing submissions in the 
mail by this date will not be sufficient. Extensions of time to submit 
briefs will not be granted.

FORMAT: All briefs shall be captioned ``Department of the Interior, 
Washington, D.C. and U.S. Geological Survey, Reston, VA and National 
Federation of Federal Employees, Local 1309, WA-CA-30451.'' Briefs 
shall not exceed fifteen double-spaced pages and must contain separate, 
numbered topic-headings. Parties must submit an original and four 
copies of each amicus brief, on 8\1/2\ by 11 inch paper. Briefs must 
include a signed and dated statement of service that complies with the 
Authority's regulations showing service of one copy of the brief on all 
counsel of record or other designated representatives. 5 CFR 2429.27(a) 
and (c). The designated representatives are: Leslie Deak, Union 
Representative, National Federation of Federal Employees, 1016 16th 
Street, NW, Washington, D.C. 20036; Beatrice G. Chester, Agency 
Representative, Office of the Solicitor, U.S. Department of the 
Interior, 1849 C Street, NW., Washington, D.C. 20240; and Michael W. 
Doheny, Regional Director, Federal Labor Relations Authority, 800 K 
Street, NW., Suite 910, Washington, D.C. 20001.

ADDRESSES: Mail or deliver briefs to Peter Constantine, Director, Case 
Control Office, Federal Labor Relations Authority, 607 14th Street, NW, 
Room 415, Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Peter Constantine, Director, Case 
Control Office, Federal Labor Relations Authority, (202) 482-6540.

SUPPLEMENTARY INFORMATION: The case presenting the issues on which 
amicus briefs are being solicited is before the Authority on remand 
from the United States Supreme Court (NFFE and FLRA v. Department of 
the Interior, 119 S. Ct. 1003 (1999) (NFFE and FLRA v. Interior)) and 
in turn from the United States Court of Appeals for the Fourth Circuit 
(U.S. Department of the Interior v. FLRA and NFFE, Nos. 96-2855 and 97-
1135 (4th Cir. April 23, 1999) (Interior v. FLRA and NFFE)). To assist

[[Page 33080]]

interested persons in responding, the Authority offers the following 
litigation background, limitation on briefs, and question on which 
amicus views are being sought.

A. Litigation Background

    In 1987, the United States Court of Appeals for the District of 
Columbia Circuit set aside the Authority's decision in Internal Revenue 
Service, 17 FLRA 731 (1985) (IRS I) that an agency had no obligation to 
bargain over union-initiated proposals offered during the term of a 
collective bargaining agreement. National Treasury Employees Union v. 
FLRA, 810 F.2d 295 (D.C. Cir. 1987) (NTEU v. FLRA). Relying on private 
sector precedent and congressional intent to encourage and promote 
collective bargaining in the federal sector, the court held that the 
obligation to bargain under the Federal Service Labor-Management 
Relations Statute, 5 U.S.C. 7101-7135 (1994 & Supp. III 1997) 
(Statute), extended to union-initiated midterm proposals. Id. at 301. 
On remand, the Authority adopted the reasoning of the D.C. Circuit and 
held that an agency is obligated to bargain during the term of a 
collective bargaining agreement on negotiable union proposals 
concerning matters not contained in or covered by the term agreement 
unless the union has waived its right to bargain about the subject 
matter involved. Internal Revenue Service, 29 FLRA 162, 166 (1987) (IRS 
II).
    In 1992, the United States Court of Appeals for the Fourth Circuit 
expressly disagreed with the reasoning of the Authority and the D.C. 
Circuit, concluding that ``union-initiated midterm bargaining is not 
required by the [S]tatute and would undermine the congressional 
policies underlying the [S]tatute.'' Social Security Admin. v. FLRA, 
956 F.2d 1280, 1281 (4th Cir. 1992) (SSA v. FLRA). The court, on 
examining the text of the Statute and its legislative history, 
concluded that the mutual obligation to bargain in good faith ``arises 
as to only one, basic agreement[.]'' Id. at 1284-85.
    Subsequently, the Authority and, in turn, the Fourth Circuit were 
presented with the issue of midterm bargaining in a different context. 
In both U.S. Department of Energy, Washington, D.C., 51 FLRA 124 (1995) 
(Department of Energy), and in the case now before the Authority on 
remand, U.S. Department of the Interior, Washington, D.C. and U.S. 
Geological Survey, 52 FLRA 475 (1996) (Department of Interior), the 
Authority analyzed an agency's obligation to bargain over a contract 
term requiring union-initiated midterm bargaining. In Department of 
Energy, the Authority concluded that the agency had violated the 
Statute by disapproving a provision obligating an agency to bargain 
over union-initiated proposals not contained in or covered by the 
agreement. 51 FLRA at 125. Similarly, in Department of Interior, the 
Authority found a violation where the agency refused to bargain over a 
proposal substantially identical to that at issue in Department of 
Energy; specifically, the proposal provided, in pertinent part, that 
``[t]he Union may request and the Employer will be obligated to 
negotiate on any negotiable matter not covered by the provisions of 
this agreement.'' 52 FLRA at 476.
    The Fourth Circuit reviewed and reversed both decisions. In 
Department of Energy v. FLRA, 106 F.3d 1158 (4th Cir. 1997) (Energy v. 
FLRA), the court found the midterm bargaining provision inconsistent 
with the Statute because it is ``at odds with the policies underlying 
[the Statute] and is wholly contrary to congressional intent.'' Id. at 
1164. The court further held that finding the provision at issue 
negotiable ``would effectively vitiate [SSA v. FLRA].'' Id. at 1163. In 
Interior v. FLRA, 132 F.3d 157 (4th Cir. 1997), on finding the case 
controlled by SSA v. FLRA and Energy v. FLRA, the court granted the 
agency's petition for review.
    The Authority petitioned the Supreme Court for review of the Fourth 
Circuit's decision in Interior v. FLRA. Acknowledging the split in the 
United States Courts of Appeals on this issue, the Supreme Court 
granted certiorari and focused on the issue of whether the Statute 
``impose[s] a duty to bargain during the term of an existing labor 
contract[.]'' NFFE and FLRA v. Interior, 119 S. Ct. at 1007. Rejecting 
the view of the court below, the Court found ``the Statute's language 
sufficiently ambiguous or open on the point as to require judicial 
deference to reasonable interpretation or elaboration by the'' 
Authority. Id.
    In reaching this determination, the Court, after pointing out that 
the Statute did not expressly address union-initiated midterm 
bargaining, rejected the agency's arguments that the Statute prohibited 
midterm bargaining. Specifically, the Court disagreed with assertions 
that midterm bargaining was inconsistent with the language, policies, 
prior practice, legislative history, or management rights provision 
(section 7106(a)) of the Statute. Id. at 1008-10. The Court concluded 
that ``[t]he Authority would seem better suited than a court to make 
the workplace-related empirical judgments' that will balance ``the 
policy-related considerations'' concerning the merits and drawbacks of 
union-initiated midterm bargaining. Id. at 1009. The Court went on to 
find the ``absolute'' interpretations of the Fourth and D.C. Circuits 
inconsistent with the statutory ambiguity. Id. at 1010. The Court found 
this ``statutory ambiguity [to be] perfectly consistent, however, with 
the conclusion that Congress delegated to the Authority the power to 
determine * * * whether, when, where, and what sort of midterm 
bargaining is required.'' Id. at 1010.
    Finally, noting that the specific question before the Court 
concerned ``whether an agency must bargain endterm about including in 
the basic labor contract a clause that would require certain forms of 
midterm bargaining[,]'' the Court concluded that ``the Statute grants 
the Authority leeway (within ordinary legal limits) in answering that 
question as well.'' Id. at 1011. However, the Court found that the 
Authority's prior explanation concerning the duty to bargain over such 
proposals was ``more an effort to respond to, and to distinguish, a 
contrary judicial authority, rather than an independently reasoned 
effort to develop complex labor policies.'' Id. Accordingly, the Court 
remanded the case to afford the Authority the opportunity to consider 
the issues of midterm bargaining, and the related question of 
bargaining about midterm bargaining, ``aware that the Statute permits, 
but does not compel, the conclusions [that the Authority] reached.'' 
Id.
    The Fourth Circuit remanded ``to the Authority for further 
proceedings consistent with the opinion of the Supreme Court.'' 
Interior v. FLRA and NFFE, slip op. at 4.

B. Limitations on Briefs

    As noted in the preceding section, the Supreme Court has determined 
that the Statute is ambiguous on the issue of whether an agency is 
obliged to engage in union-initiated midterm bargaining. As a result, 
the Authority will not entertain any further argument on the question 
of whether union-initiated midterm bargaining is required or prohibited 
by the Statute. Rather, we seek interested parties' views only to 
assist the Authority in making ``the workplace-related empirical 
judgments'' that will balance ``the policy-related considerations'' 
concerning union-initiated midterm bargaining. NFFE and FLRA v. 
Interior, 119 S. Ct. at 1009. Because of the extensive previous 
litigation on this issue, the Authority has concluded that the fifteen 
page length limitation noted above is appropriate and will provide 
ample

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opportunity for interested parties to express their views.

C. Question on Which Briefs Are Solicited

    The parties in the instant case have been directed to address the 
question set forth below. Additionally, the Authority believes that 
this issue is likely to be of concern to the federal sector labor-
management relations community in general. Accordingly, the Authority 
invites interested persons to address the following and any other 
policy-related matters deemed relevant to balancing the pros and cons 
of union-initiated midterm bargaining.
    In the context of resolving this case, what policy considerations 
and empirical data should the Authority balance in determining whether, 
when, and where union-initiated midterm bargaining is required?

    Dated: June 16, 1999.

    For the Authority.
Peter Constantine,
Director of Case Control.
[FR Doc. 99-15656 Filed 6-18-99; 8:45 am]
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